Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court, Trial Court Case No.
MATHIAS H. HECK, JR., MEAGAN D. WOODALL, Atty., Montgomery
County Prosecutor's Office, Appellate Division,
Montgomery County Courts Building, Attorney for
A. KATCHMER, Atty., Attorney for Defendant-Appellant
1} Derrick Lewis appeals from his conviction and
sentence following a no-contest plea to charges of heroin
possession and aggravated drug possession.
2} In his sole assignment of error, Lewis contends
the trial court erred in overruling his motion to suppress
the drugs at issue. More specifically, he asserts that a
police officer was not entitled to pat him down during a
traffic stop, that his subsequent arrest was invalid, and
that all evidence discovered was subject to suppression.
3} The record reflects that Dayton police officer
Terry Perdue, the only witness at the suppression hearing,
saw Lewis driving a Chevy Trailblazer with very darkly tinted
windows. Lewis proceeded to make a lane change without
signaling properly before pulling into a drug-store parking
lot. Perdue turned his cruiser around and pulled into the
parking lot, intending to perform a traffic stop for the
turn-signal violation and an apparent window-tint violation.
When Perdue approached the Trailblazer, however, Lewis was
gone. A passenger in the Trailblazer, Makayla Patton,
identified the driver as Derrick Lewis and explained that he
was inside the drug store. Perdue ran a computer check on
Patton and discovered that she had at least one unspecified
warrant and a history of "field interviews" for
4} While Perdue was dealing with Patton, Lewis
exited the drug store. After Patton again identified Lewis as
the driver of the Trailblazer, Perdue called him over to the
cruiser. Perdue asked Lewis for identification, which Lewis
did not possess. Perdue also asked whether Lewis had been
driving, which Lewis denied. At that point, Perdue placed one
hand on Lewis' back in an attempt to perform a pat down
before placing him in the cruiser and running a computer
check on him. Perdue testified that the attempted pat down
was for officer safety to make sure Lewis did not have a
weapon. Perdue was concerned about possible weapons primarily
because of passenger Patton's prior drug-related field
5} In any event, Lewis fled on foot when Perdue
touched his back to start the pat down. Lewis ran into the
middle of the street and fell. Perdue caught him there, put
handcuffs on him, and placed him under arrest for obstructing
official business based on his flight from the traffic stop.
During a search incident to arrest, Perdue found Percocet,
Xanax, heroin, and $1, 500 cash in Lewis' pants pockets.
The Trailblazer was inventoried and towed, but the
suppression-hearing transcript does not identify what
additional evidence was found in it.
6} Lewis ultimately was charged on four drug-related
counts, and he moved to suppress all evidence discovered in
connection with the traffic stop. Based on the testimony
presented, the trial court overruled the motion. In relevant
part, it reasoned:
In the case at bar, Perdue credibly testified that he had
observed the traffic violations. Further, he believed that a
pat-down for officer safety was necessary because the
passenger in the car had been linked to drug activity through
the field identification cards on her. Perdue intended to
place Defendant in his cruiser while he ran Defendant's
identification information. Based on the foregoing the
attempted pat-down of Defendant was justified. Further, after
Defendant fled the scene, the search of his person incident
to his arrest was justified.
Finally, Defendant objects to the search of his Trailblazer
because it was conducted without a warrant. Perdue testified,
however, that the search was conducted in accordance with the
City of Dayton's tow policy, which provides for an
inventory search of impounded vehicle[s]. Defendant was an
unlicensed driver, and since he was being arrested, the
Trailblazer was impounded. * * *
(Doc. #20 at 4).
7} Lewis later pled no contest to one count of
heroin possession, a fourth-degree felony, and aggravated
drug possession, a fifth-degree felony. The ...